We recently blogged about the possibility of courts limiting serial litigants’ standing under the Telephone Consumer Protection Act (TCPA) based on them not falling within the statute’s “zone of interest” and, thus, not having standing under Article III of the U.S. Constitution. Nate Silver’s job clearly isn’t threatened by our predictive blog posts, because in Romero v. Department Stores National Bank, — Fed. Appx. –, No. 16-56265, 2018 WL 1079728 (9th Cir. Feb. 28, 2018), the Ninth Circuit provided support with respect to standing for TCPA plaintiffs (albeit in a different context than serial litigants). The court, in an unpublished opinion, relied on Van Patten v. Vertical Fitness Group in finding that a TCPA violation is a de facto injury sufficient for standing in federal court under Article III. Here, the alleged TCPA violation was placing nearly three hundred calls to a cell phone using an automatic telephone dialing system without the called party’s consent.
Romero is slightly different from most TCPA cases we blog about because the plaintiff did not receive calls from a telemarketer, but from the bank that provided her a loan. As a result, there likely was consent from the outset, which only later was revoked to potentially create TCPA liability. The plaintiff provided her cell phone number when she created a credit card account at a national retailer. After she failed to satisfy delinquent payments on that account, she began receiving collection calls from banks. She claims that she received over 290 collection calls made with an automatic dialing system and that she requested to stop receiving calls on each of the three instances in which she answered. After the last of these do-not-call requests, she stopped receiving the calls.
The district court found the alleged TCPA violation to be disconnected from any actual harm and granted defendants’ motion to dismiss for lack of standing. It relied on Spokeo v. Robins in finding that a “bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III.” In doing so, the district court distinguished between calls from a telemarketer and calls from a creditor when finding an actual injury for purposes of standing. The Ninth Circuit rejected that distinction, instead stating that “unsolicited contact” by any caller, not only by telemarketers, is a TCPA violation sufficient to create standing. It reversed the district court, quoting its decision in Van Patten that “a violation of the TCPA is a concrete, de facto injury,” and found that the plaintiff had standing.
The Romero decision could prove to be a significant boon to private litigants and a nuisance to industry. The holding that any TCPA violation creates standing, divorced from a showing of any other injury, might hamper defendants’ efforts to dismiss TCPA suits pre-trial. If this trend holds, private litigants will be able to take companies to trial without establishing any actual harm – a significant bargaining chip to hold. We’ll continue to blog about this issue, and for additional context, please see our list of recent TCPA actions here.